| J.R. of P-1618/P-1627/PO-1658 | Orders: P-1618 P-1627 PO-1658 |
Court File No.
681/98
Superior Court of Justice
(Divisional Court)
(Hartt, Meehan and Kozak
JJ.)
SOLICITOR GENERAL AND MINISTER
OF
CORRECTIONAL SERVICES
and
TOM MITCHINSON, Assistant
Commissioner et al.
ENDORSEMENT
| 1. | This is an application for judicial review by the Solicitor General et al. quashing Order P-1618 made October 7, 1998. | |
| 2. | The requester Jane Doe sought access to a copy of 124 pages of a public complaint file relating to a complaint made by the requester and her husband to the Police Complaints Commission in 1992. Although not present, the requester filed a factum which was reviewed by the Court. | |
| 3. | The Ministry denied the request, stating that the public complaint file fit within the scope of s. 65(6)3 of the Act and therefore excluded. | |
| 4. | Counsel for both the Ministry and the Commissioner agreed that an employment-related matter was involved. | |
| 5. | Counsel for the Ministry argued that the amendment of which subsection 65(6) and 65(7) were a part was put in for the purpose of putting the government into the same position as a private employer with relation to employment-related records. We are of the opinion that so classifying the amendment is to state the proposition too broadly. Subsection (3) says "employment-related matter in which the institution has an interest". Ms. Blake argues that all employment-related records are not subject to the Act and that [interest] means "ownership or management interest"; and that in using the words "in which the institution has an interest", the legislature was excluding employment records of employees of private employers which might for some reason be in the possession of a government institution, for example, the Ministry of Labour. We do not see any merit in this explanation for the use of the phrase in ss. (3). | |
| 6. | The Commissioner interpreted the words "in which the institution [has] an interest" in a legally oriented sense. | |
| 7. | The Commissioner held that the records in question related to an employment matter in which the institution had an interest - but that six years had passed and there was currently no outstanding interest in the investigation that had the capacity to affect the institution's legal rights or obligations and therefore the records did not fit within the scope of s. 65(6)3 and were subject to the Act. | |
| 8. | Re: Standard of Review - It is argued upon behalf of the Ministry that in interpreting s. 65(6) in particular, the Commissioner was adding to his jurisdiction and therefore under the Court of Appeal decision in Walmsley the standard of review is correctness. In our view, the records in question were in the control of the Ministry and thus the Commissioner, in interpreting his home statute, and in adopting a pragmatic and functional approach was entitled to deference and a standard of reasonableness applies. Even if we are wrong in this, and the standard of correctness applies, we would dismiss the application. No costs. | |
| March 21, 2000 | "E.P. Hartt J." |
| Court File No. 698/98 |
| Superior Court of Justice
(Divisional Court) (Hartt, Meehan and Kozak JJ.) ATTORNEY GENERAL FOR
ONTARIO |
ENDORSEMENT
| . | At the request of experienced counsel both for the applicant and the Commissioner the Court heard this application at the same time as File #681/98 and File #209/99. Although the factual situations were obviously different in the three matters,it was argued by counsel that all involved an employment related matter and that the outcomes would be the same depending upon the interpretation the Court placed upon s 65(6)3 of the Act. | |
| . | The requester appeared in person, adopted the argument of Mr. Challis and in addition made a brief argument based upon s. 65(6)1 but we found no merit and Ms. Blake was not called upon in relation to it. | |
| See endorsement re: file #681/98. | ||
| Application dismissed. No costs. | ||
| March 21, 2000 | "E.P. Hartt J." |
| Court File No. 209/99 |
| Superior Court of Justice
(Divisional Court) (Hartt, Meehan and Kozak JJ.) SOLICITOR GENERAL AND MINISTER
OF |
ENDORSEMENT
| . | At the request of experienced counsel both for the applicant and the Commissioner the Court heard this application at the same time as File #681/98 and File #698/98. Although the factual situations were obviously different in the three matters, it was argued by counsel that all involved an employment related matter and that the outcomes would be the same depending upon the interpretation placed upon s 65(6)3 by the Court. | |
| See endorsement re: file #681/98. | ||
| Application dismissed. | ||
| March 21, 2000 | "E.P. Hartt J." |